Kerr Glass Manufacturing Corp. v. Elizabeth Arden Sales Corp.

DRAPEAU, J. pro tem.

Plaintiff and defendant executed an instrument in writing which they denominated a lease of real property. With one exception it is definite and certain as to terms, description of premises, quiet enjoyment, remedies upon default, rental, and all other usual and necessary parts of a lease.

The controversy here involved revolves around the agreement of the plaintiff to erect a building upon the demised premises to be rented in part by the. defendant. Therefore, that part of the lease is as follows :

“Lessor covenants and agrees that, upon the execution of

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this lease, it will proceed to construct a building upon that real property in the City of Beverly Hills, County of Los Angeles, State of California, described as: (description) and thereafter prosecute the erection of same until completed.

“Said building shall be constructed generally in accordance with the preliminary leasing plans and outline specifications therefor which are attached hereto, approved in writing by both the lessor and the lessee, and by reference made a part hereof the same as if set forth in full herein, and the final plans and specifications, hereinafter referred to. The final plans and specifications shall be prepared by the lessor within a reasonable period of time, and shall be approved in ' writing by both the lessor and the lessee before the commencement of the construction of said building, and upon said final plans and specifications being approved by the parties hereto as aforesaid, they shall become a part of this lease by reference the same as if set forth in full herein, and neither party to this lease shall unreasonably withhold its approval thereof. ’ ’

The amended complaint alleges that plaintiff prepared the final plans and specifications but defendant unreasonably failed and refused to approve the same, and the building was not erected, to the damage of plaintiff. Demurrer to the complaint was sustained without leave to amend, and judgment for defendant followed, from Which judgment plaintiff has appealed.

Defendant maintains that the lease is merely an agreement to make an agreement, and, therefore, is not binding upon the defendant in any way, either in an action upon the agreement itself or for damages for its breach. This for the reason that the final plans and specifications for the erection of the building to be prepared by the lessor and approved by the lessee were not approved.